Posting of Workers within the European Union. The Enforcement Directive 2014/67/EU and shortfalls of existing legislation

Master's Thesis , 2015 , 60 Pages , Grade: 10

Law - European and International Law, Intellectual Properties

This thesis guides the reader through the most important aspects of current European labour law in relation to posted workers. It starts with basic definitions and provides answers to questions of jurisdiction and applicable law. The thesis then explains in detail the framework of the provisions guaranteeing a minimum level of safeguards and other rights to workers (Directive 96/71/EC) as well as the framework of the provisions applicable with regard to social security benefits and contributions (Regulation 883/2004). It explains the true impact of judgment Sähköalojen ammattiliitto ry on the applicable minimum wage and shows possible legal advantages of using posted workers over the domestic workforce. It furthermore explains how the practically important Internal Market Information System works and shows common ways of abuse and circumvention of current legislation. It divides these ways of abuse into the categories “Undesirable Legal Posting”, ”Questionable Practices”, “Fraud and Fake Postings”, “Letterbox companies” and “Bogus self-employment”, discussing three cases.

The most recent development in the area of posted workers is Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (Enforcement Directive). The thesis explains the shortcomings of Directive 96/71/EC. It lists the novelties that the Enforcement Directive introduces and discusses their possible transposition into national law, their merits and insufficiencies. The thesis then takes a detailed look at one of these novelties, the new subcontracting liability in the construction sector. Finally, the thesis provides numbers of posted workers within the EU and specific countries, which enables the reader to put the economic impact of posted workers in perspective.

Inhaltsverzeichnis (Table of Contents)

• Summary
• Table of Contents
• Introduction
  • Background
  • Limitations
  • Aim
• Definition of a posted worker
• Jurisdiction in regard to posted workers
• Applicable national law in regard to posted workers
  • Three-step system
  • Summing up
• Overview of European Legislation applicable to posted workers
• Directive 96/71/EC on the Posting of Workers
  • Legal Theory
  • Scope of application
  • A "hard core" of employment conditions the host state's overriding mandatory provisions
  • Effect of Article 3 of the Posting of Workers Directive in the opposite direction
  • Special treatment of temporary agency workers (“hired-out workers”)
    • Overview of different ways that Directive 96/71/EC influenced national laws
    • Procedure and Notifications in regard to the Posting of Workers
• Judgment in Sähköalojen ammattiliitto ry and other CJEU judgments regarding minimum rates of pay
  • Minimum wage elements
  • Summing up
• Regulation (EC) No 883/2004 on the coordination of social security systems
  • The Article 12 exemption for posted workers and its conditions
    • 24 months maximum
    • No replacement
    • Substantial activities
    • A direct relationship
    • Coverage under the sending state's social system
  • Exceptions under Article 16 of Regulation (EC) 883/2004
  • Procedure and Notifications in regard to Regulation (EC) 883/2004
• The Internal Market Information System (“IMI”)
• Possible advantages of using posted workers instead of the local workforce
• Abuse and circumvention of European legislation regarding the Posting of Workers
  • A brief overview
  • Case reports
    • Italy
    • Belgium I
    • Belgium II (Letterbox Company)
  • Details in regard to letterbox companies
  • Specific shortcomings of the Posting of Workers Directive 96/71/EC
    • Information available
      • Information available regarding national minimum wages
    • Cooperation between Member States as well as national control and monitoring measures
    • Unclear criteria in relation to the scope of application of the Posting of Workers Directive
• Stepping up the enforcement of EU legislation on the posting of workers with Directive 2014/67/EU (The “Enforcement Directive”)
  • Indicators of a genuine posting
  • Monitoring and compliance
  • Subcontracting liability in the construction sector
  • Enhanced administrative cooperation
  • Improved access to information
  • A detailed look at the new subcontracting liability in the construction sector
• The number of posted workers within the European Union
• Conclusion

Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)

This thesis aims to analyze the current state of European labor law in relation to posted workers, examining existing legislation and its shortcomings in light of practical applications and case studies. It delves into the framework of provisions designed to safeguard workers' rights and explores the impact of recent judgments from the Court of Justice of the European Union (CJEU) on the issue of minimum wage.

• The legal framework governing the posting of workers within the EU.
• The practical implementation and enforcement of the relevant directives and regulations.
• The prevalence and methods of abuse and circumvention of European legislation on posted workers.
• The implications of recent CJEU judgments, particularly in regard to minimum wage.
• The role of Directive 2014/67/EU (the "Enforcement Directive") in addressing the shortcomings of previous legislation.

Zusammenfassung der Kapitel (Chapter Summaries)

• Chapter 1 introduces the concept of a posted worker and the relevant legal framework.
• Chapter 2 explores the jurisdiction and applicable national law in relation to posted workers.
• Chapter 3 provides an overview of relevant European legislation, including Directive 96/71/EC on the Posting of Workers.
• Chapter 4 analyzes the impact of the CJEU judgment in Sähköalojen ammattiliitto ry on minimum wage rates for posted workers.
• Chapter 5 examines the role of Regulation (EC) No 883/2004 on the coordination of social security systems in the context of posted workers.
• Chapter 6 discusses the Internal Market Information System (IMI) and its role in facilitating administrative cooperation.
• Chapter 7 explores potential advantages of employing posted workers over local workforce.
• Chapter 8 examines common methods of abuse and circumvention of European legislation regarding the posting of workers.
• Chapter 9 provides a detailed analysis of the shortcomings of Directive 96/71/EC.
• Chapter 10 analyzes the provisions of Directive 2014/67/EU (the "Enforcement Directive") aimed at strengthening enforcement of existing legislation on the posting of workers.
• Chapter 11 provides statistical data on the number of posted workers within the EU.

Schlüsselwörter (Keywords)

This thesis centers on the legal framework for posted workers within the EU, exploring key concepts such as Directive 96/71/EC on the Posting of Workers, Directive 2014/67/EU (the "Enforcement Directive"), minimum wage, social security coordination, administrative cooperation, abuse and circumvention of legislation, and the Internal Market Information System (IMI).

• Grade: 10
• Author: Matthias Strohmayer (Author)
• Publication Year: 2015
• Pages: 60
• Catalog Number: V339303
• ISBN (eBook): 9783668293762
• ISBN (Book): 9783668293779
• Language: English
• Tags: worker, post, posting, enforce, enforcement, directive, state, employer, member, provision, regulation, european, OF A POSTED WORKER, definition posted worker, definition worker, definition, social security, social, race to the buttom, Regulation (EC) No 883/2004, EU, Directive 96/71/EC, 96/71/EC, Posting of Workers Directive, Directive 2014/67/EU, 2014/67/EU, Regulation (EU) No 1024/2012, Enforcement Directive, Regulation (EC) No 883/2004 on the coordination of social security systems, Regulation 883/2004, 883/2004